Another View: McDonnell case is a threat to the Constitution

By C. Boyden Gray The Washington Post

Published 1:12 pm, Friday, September 4, 2015

When public officials break the law, they must be punished. But when prosecutors stretch laws to criminalize everyday contact between the people and their elected officials, those prosecutors must be stopped. Democracy and the rule of law are threatened by public corruption, but they are threatened every bit as much by those who would erect a wall between people and their representatives.

Last year, a federal trial court convicted former Virginia governor Robert McDonnell of violating federal bribery laws while in office. Specifically, the jury, based on the judge’s legal instructions, found that McDonnell and his wife, Maureen, had “corruptly” sought financial benefits from a wealthy supporter, “in return for” the governor “being influenced in the performance” of “official act1/8s3/8.”

But the case involved no allegations that McDonnell doled out favors one normally would consider “official acts”: government contracts, favorable regulatory or prosecutorial treatment, or the enactment of favorable legislation. Rather, the official acts that McDonnell allegedly undertook were nothing more than speaking with aides and arranging a single meeting between an aide and the supporter.

To criminalize such discussions and a meeting required an unprecedented expansion of federal bribery laws, stretching the definition of “official acts” further than the Supreme Court has allowed. Unfortunately, the prosecutors persuaded the trial judge to accept such a startlingly broad reading of the law and to instruct the jury to implement it. The jury convicted McDonnell last September, and the U.S. Court of Appeals for the 4th Circuit affirmed that conviction in July.

The case now arrives at the U.S. Supreme Court, which issued an order this week allowing McDonnell to remain free on bail while his appeal is pending. Let’s hope that this initial order reflects the court’s interest in paring back prosecutors’ dangerously overbroad reading of the law.

To be clear, any public official who accepts benefits in exchange for favorable “official acts” must be prosecuted. And I am not vouching for the prudence of the McDonnells’ seemingly reckless actions.

But when prosecutors and judges stretched the bribery statutes beyond reasonable limits, the case grew well beyond the narrow facts at hand. It now raises much more significant questions about the right of the people to meet with their elected representatives and representatives’ obligation to meet with the people.

This is why the case attracted a flurry of amicus briefs in support of McDonnell — and not just from his fellow Republicans. One brief (which I joined) was filed by more than a dozen former federal officials, including White House counsels to every president from Reagan to Obama. We were not alone. Stalwart defenders of civil rights, including such prominent liberals as Harvard Law School’s Charles Ogletree and former federal judge Nancy Gertner, were among the critics of this prosecutorial overreach. A brief filed by dozens of former state attorneys general argued that the novel legal interpretations used against the McDonnells would empower prosecutors to “transform innocent political courtesies into fodder for federal criminal prosecutions.”

In rejecting McDonnell’s claims, the 4th Circuit concluded that the court’s statutory interpretation — specifically, the interpretation of “official act” as encompassing mere conversations and meetings — was not too broad, because the court limited it to the “customary and settled practices” of the office in question and would prohibit only those activities that have the “purpose or effect” of influencing the official’s acts.

But the court’s vague standard drew no bright lines that would enable officeholders and the public to know, in advance, which activities are allowed under the law and which are not. The Supreme Court has warned elsewhere that criminal laws should be interpreted to avoid such vagueness and due-process problems. But the 4th Circuit ignored such warnings.

Worse, the 4th Circuit failed to recognize the chilling effect this uncertainty could have on the public and officeholders alike. Nor did the court acknowledge the vast discretion that this vague standard commits to prosecutors — who occasionally have political agendas of their own.

In short, the approach endorsed by the prosecutors and the lower courts threatens to turn the Constitution on its head. In our representative democracy, the people have the right to make their opinions known to their elected officials, and republican self-government obligates those officials to listen to their constituents.

Those fundamental constitutional principles are at the root of our First Amendment rights to speak, assemble and petition government. That is why laws restricting political speech are subjected to “strict scrutiny” by the courts: because, as the Supreme Court explains, First Amendment standards “must give the benefit of any doubt to protecting rather than stifling speech.”

Similarly, the Constitution protects our right to engage with our elected leaders. Michael Boudin, one of the nation’s most respected judges, put this point best in a 1997 opinion for the U.S. Court of Appeals for the 1st Circuit. It “is patently offensive to the First Amendment” for regulators to infringe “upon the right of citizens, individual or corporate, to confer and discuss public matters with their legislative representatives or candidates for such office.”

These fundamental principles of constitutional democracy echo through other areas of the law, too. In antitrust law, the courts take care to ensure that generally applicable laws against anticompetitive behavior do not chill interactions between the public, including companies, and elected leaders. “In a representative democracy,” the Supreme Court wrote in a key 1961 case, “the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.”

These same constitutional principles must guide proper interpretation of our federal anticorruption laws. Courts must vindicate those laws, of course, but in doing so they must construe them in a way that vindicates the First Amendment and republican democracy.

Because this case arose from allegations of corruption, it calls to mind Lord Acton’s famous warning that “all power tends to corrupt; absolute power corrupts absolutely.” That warning applies to prosecutors no less than to governors. The prosecutors’ and lower-court judges’ redefinition of the anticorruption laws will empower prosecutors to micromanage, chill or even criminalize everyday interactions between the people and their elected officials — and this power will corrupt prosecutors by politicizing their offices. It will ultimately hurt the very principles of good government and the rule of law that anticorruption laws were intended to protect. The Supreme Court must put an end to this.